by Mark Tushnet. Oxford: Hart Publishing, 2009. 288pp. Paper. £12.95/$28.00. ISBN: 9781841137384.Reviewed by Michael P. Allen, Professor of Law, Stetson University College of Law. Email: allen [at] law.stetson.edu.
pp.534-537
THE CONSTITUTION OF THE UNITED STATES: A CONTEXTUAL ANALYSIS is the second volume in a planned series discussing the constitutional systems of various counties around the world. Harvard University law professor Mark Tushnet provides his highly readable take on the Constitution of the United States in this book. As discussed below, Tushnet’s effort is quite successful for those readers with a solid, pre-existing understanding of the basic American constitutional structure. It may not be as useful for those starting with less of an understanding of the United States Constitution.
The key to understanding the strengths and principal weakness of this book is its Introduction. Tushnet explains that his focus will be less on the “written” Constitution and more on the “efficient” Constitution (borrowing the term coined by Walter Bagehot.). As Tushnet explains, this focus flows from three facets of the written Constitution: it “is old, short and difficult to amend” (p.1). As such, true constitutionalism in the United States is a product, Tushnet opines, of two features. The first, and less important, factor is the Supreme Court’s interpretation of the written Constitution. The second, and primary, factor in understanding the efficient Constitution is politics. As Tushnet writes: “one can understand how the US government actually operates – that is, the efficient constitution – only by seeing it as a government fundamentally structured around the existence of two nationally organized political parties” (p.5).
Tushnet carries out the project he describes in the Introduction in seven chapters. True to his promise, these chapters focus little attention on the terms of the written United States Constitution and only marginal consideration of the Supreme Court’s interpretations standing alone. Instead, American constitutional law is principally described through the lens of politics in the United States, including how politics affects the Supreme Court and its constitutional decisions. Chapter One is an overview of United States history designed to provide context for the discussion that follows. I should note that Tushnet does an outstanding job dealing with the daunting task of providing a concise yet informative overview of over two hundred years of American history. Chapters Two through Four discuss the “constitutional politics” of the legislative, executive, and judicial branches of the United States national government respectively. Chapter Five considers the vertical structural features of government in the United States and its system of federalism under the Constitution. Chapter Six focuses on the [*535] Constitution’s protection of individual rights. Finally, Chapter Seven addresses the formal and, more importantly, the informal means by which constitutional change occurs.
For readers with a solid understanding of basic American constitutional law, that is someone who has at least the understanding of a student at end of the basic course in constitutional law in a law school, every part of this book works well. The reason is that such a reader can fully appreciate Tushnet’s almost masterful weaving together of history, politics, and constitutional theory to explain the development of contemporary constitutional doctrine. While such a reader will not agree with every interpretation of the efficient Constitution Tushnet advances, he or she will no doubt enjoy the experience of digesting the material in this volume.
While one could select many examples to illustrate the best features of Tushnet’s effort, two suffice to make the point. As mentioned, Chapter Two discusses the “constitutional politics of the legislative branch.” After a very brief description of congressional structure under the Constitution, the chapter focuses almost entirely (as its conclusion notes) on the reality that “[p]olitical parties, unmentioned in the written constitution, are the tools that define Congress” (p.77). To reach that conclusion, Tushnet explores the growth and development of political parties over the course of American history. He then describes how a number of issues such as candidate selection, legislative redistricting, and campaign finance help construct the operation of the efficient Constitution. This discussion is particularly interesting in the way in which it turns the normal take on such issues on its head. Instead of focusing on how the Constitution shapes campaign financing, for example, Tushnet describes how campaign financing actually affects the Constitution. This general type of discussion continues in Chapter Five dealing with federalism, which in many ways seems like a continuation of many of the themes present in Chapter Two. That discussion is equally as effective.
Chapter Six’s discussion of individual rights also highlights the book’s positive features. Instead of approaching individual rights under the Constitution as a collection of discreet, if connected, categories (e.g., free speech, due process, equal protection, and so on) Tushnet provides an intellectual history of sorts that connects various changes in American constitutional law. To take one example, the chapter links the growth of the so-called rights jurisprudence generally in the Twentieth Century to three principal developments: (1) lawyers’ use of “rights litigation;” (2) political parties in conjunction with social movements; and (3) the movement of rights protection from Congress to the courts (pp.221-33). Of course, such observations are not unique to Tushnet. However, he is able to explain these complex matters well and connect them to a broader consideration of constitutional liberty in a highly readable manner. The discussion is an excellent example of how a contextual analysis should work.
One final useful feature of the book that is worthy of mention is its use of references to other works. There is an inherent difficulty concerning citation in writing a text that provides an overview [*536] of something as complex as the American constitutional order over the past two centuries. One must make broad statements while at the same time providing at least some detail. Given this, it is tempting when facing such a challenge to either omit most references or, conversely, overwhelm the reader with citations to other, more specifically focused works. Tushnet avoids both pitfalls. He provides enough textual references in footnotes to substantiate his assertions while not disrupting the flow of the text in a material way. Moreover, at the end of each chapter he assembles a brief list of additional resources that can be used to extend the discussion. These references are an additional positive aspect of the work.
Despite its many strengths, there is one significant weakness with this book. For readers who are unfamiliar with what Tushnet describes as the written Constitution (or at least the principal ways in which that document has been interpreted by the courts), there is a real danger that the book provides an insufficient foundation to understand the American constitutional system. To borrow from the classic movie THE WIZARD OF OZ, Tushnet’s approach is akin to immediately focusing discussion on the “man behind the curtain.” The problem is that if one does not have a basic understanding of the Wizard, it is impossible to fully appreciate a discussion of the person pulling the levers who is meant to be hidden from view.
Interestingly, one of the examples showing the book’s strengths also demonstrates this principal weakness. As described above, Chapter Six’s discussion of individual rights is a fascinating account of how the political process shaped the growth of constitutional law. Yet, one can only appreciate that discussion if one has an understanding of what the cluster of individual constitutional rights looks like. It may be the case as Tushnet argues that “[t]he central place rights have in the US constitutional culture would make it foolish to attempt to survey the substantive law or individual rights under the US Constitution” (p.187). But without at least some attempt to paint such a picture with even a broad brush it seems unlikely that a person unfamiliar with basic principles of American constitutionalism will get the full benefit of the discussion.
Perhaps the chapter of the book that works the best in terms of speaking to both types of reader – that is the person with a basic understanding of American constitutional law as well as the person without that base of knowledge – is Chapter Three. That chapter discusses the “constitutional politics of the executive branch.” Tushnet remains faithful to his claim to focus on the efficient Constitution less than the written document. However, in this part of the book he weaves into his discussion of politics greater mention of what can be termed the basics of the written constitutional structure and its interpretation. It does not appear that anything is lost in terms of the higher level discussion in other chapters. Indeed, one may say that something important is gained, at least for the relatively uninitiated.
In the end, one should not take the last several paragraphs to suggest that this is not an excellent book. It most certainly is, which should not come as any [*537] surprise to anyone who is familiar with Professor Tushnet’s work. If the book were meant only for those with a solid grounding in American constitutional law, I would have almost nothing critical to write. It is only for that portion of the potential audience that has relatively less knowledge that I find fault. But none of this should stop anyone from reading the book. One might simply have to read this volume after obtaining some more basic knowledge about American constitutionalism.
© Copyright 2009 by the author, Michael P. Allen.
